Clean Air Advocates Go to Court to Defend San Joaquin Valley Against Avenal Facility's Pollution

SAN FRANCISCO— A coalition of conservation and environmental justice groups today filed legal papers in the 9th Circuit U.S. Court of Appeals challenging an extension of a federal air-pollution permit for the Avenal Power Plant, a proposed 600-megawatt facility that would emit hundreds of tons of air pollution in the San Joaquin Valley.

In 2011 the Environmental Protection Agency issued a permit for the project that illegally waived the need for the project to comply with several key air-pollution standards. Since then, however, Avenal has chosen not to begin construction of the project even though, by law, the permit expired after 18 months. In its latest move, executed without any public participation, the EPA has now also waived the 18-month construction deadline, compounding the project’s failure to demonstrate that it will install state-of-the-art greenhouse gas controls and that it will not cause or contribute to the Valley’s ongoing air-pollution problems.

The Avenal natural-gas fired power plant is to be located in one of the most polluted and economically disadvantaged areas of the San Joaquin Valley, a region with some of the nation’s highest levels of ozone and particulate matter pollution. The plant would be sited within a few miles of the communities of Avenal, Huron and Kettleman City — areas with predominantly low-income, minority populations already experiencing disproportionate health impacts from the numerous polluting facilities in the region. The plant would generate annually 144.3 tons of nitrogen oxides, 80.7 tons of fine particulate matter and 1.71 million metric tons of carbon dioxide.

EPA granted the project a “Prevention of Significant Deterioration” permit under The Clean Air Act in August 2011. In approving the project, however, the agency waived requirements to install controls for greenhouse gases and to demonstrate compliance with newly applicable national air-quality standards for nitrogen dioxide and sulfur dioxide. It claimed it could “grandfather” in the project, exempting it from compliance with these requirements, because they would not have been applicable but for the agency’s failure to act on the permit application in a timely manner. That decision was challenged in court and will be argued before the 9th Circuit U.S. Court of Appeals in October.

In July 2013 the EPA exempted Avenal from another key rule requiring that construction of a project must begin within 18 months of the permit issuance in order to ensure that the latest pollution controls are included. This exemption, which is contrary to decades of EPA precedent, was based on Avenal’s specious claim that it could not obtain financing for the project due to the existing litigation.

“This air permit extension threatens to take an awful air-quality situation and make it worse,” said Earthjustice attorney George Torgun. “The people of California’s San Joaquin Valley deserve better and it is EPA’s job to protect them, not to provide special favors for an already illegal project.”

The Sierra Club, Center for Biological Diversity and Greenaction for Health and Environmental Justice, represented by national public-interest law firm Earthjustice, filed legal papers with the 9th Circuit U.S. Court of Appeals challenging the permit extension by the EPA.

“The EPA keeps letting some of the country’s biggest polluters off the hook, granting special favors that foul up our air and make climate change worse,” said Kevin Bundy, an attorney with the Center for Biological Diversity. “We’re facing an urgent global climate crisis and an urgent public-health crisis in the Central Valley. The EPA needs to do its job and protect both the climate and community health by enforcing the environmental laws that have served this nation so well for 40 years.”

“Low-income and people of color living near the Avenal site are already burdened by a major birth defect and infant mortality cluster, high levels of diesel traffic fumes, toxic pesticide spraying, and living next to the largest toxic waste dump in the western U.S.,” said Bradley Angel, executive director of Greenaction. “The EPA should not permit a new polluting power plant, especially as the law is clear that new power plants must achieve air pollution control requirements that exist today, not those from the past that EPA has already found to be insufficient to protect public health.”

The Center for Biological Diversity is a national, nonprofit conservation organization with more than 625,000 members and online activists dedicated to the protection of endangered species and wild places.